IS FEDERALISM PASSÉ?
THE SUPREME COURT’S 2001-2002 TERM

July 8, 2002

Welcome:
Michael S. Greve, Director, AEI Federalism Project & John G. Searle Scholar, AEI

Panelists:
Evan Caminker, University of Michigan Law School
Walter Dellinger, O’Melveny & Myers, LLP and Duke University Law School
John Harrison, University of Virginia School of Law
Michael Rappaport, University of San Diego School of Law

PROCEEDINGS

MR. GREVE: Welcome to the American Enterprise Institute. My name is Michael Greve. I direct the Federalism Project here at AEI and this is our second-annual Supreme Court Round-up event. Thank you all for coming. We're very gratified about the level of interest in this event and we welcome and thank C-SPAN for covering the proceedings.

We're very big on diversity at the American Enterprise Institute and consistent with that, we present to you today four white male law professors who graduated from Yale and at some point worked for the Department of Justice. But they're representing very diverse viewpoints. When I mentioned to a conservative friend of mine that John Harrison and Mike Rappaport would hold up the conservative banner at this event, he said, “but they're unreliable.” That's also true of Evan Caminker and Walter Dellinger who are generally tagged as liberal, but if you wanted somebody to defend the party line, you could do better.

I’ll briefly introduce our speakers in alphabetical order. Evan Caminker, from the University of Michigan Law School, will go first. He, as well as the other speakers, will try to put the Supreme Court's federalism in a somewhat broader perspective. Evan will talk about the question of whether the Supreme Court's federalism is actually about federalism or more about judicial supremacy. Walter Dellinger will give his take on some of the developments at the Supreme Court, past and future, and, in particular, some cases pertaining to federal pre-emption and torts. John Harrison, from the University of Virginia School of Law, will talk about what a coherent federalism doctrine from the Supreme Court might look like. There's a suppressed premise in that formulation, which I'll leave to you to figure out. And Michael Rappaport, from the University of San Diego School of Law, will address the charges of judicial activism that surround the Supreme Court's federalism decisions.

Each speaker will have about 15 minutes, after that, we'll have a discussion that I'll lead and direct. Following that, we'll have drinks, which you'll have to find on your own. We'll start with Evan Caminker.

MR. EVAN CAMINKER: Thank you very much. I first want to start by thanking the American Enterprise Institute, both for organizing a terrific panel on a very important topic and, secondly, for inviting me to share some thoughts here. In particular, thank you to Kim and Michael.

In recent years, the Supreme Court has increasingly engaged in aggressive judicial review over federal statutes. During the first 200 years of this nation's existence, the Supreme Court invalidated parts of 127 federal statutes. In the last seven years, it has invalidated parts of 28 federal statutes, meaning a full 20 percent of the invalidations have come during approximately three percent of the time.

This aggression has, in large part, reflected a resurgence of federalism thinking. In the last 7 years alone, the Supreme Court has invalidated parts of 11 federal statutes on federalism grounds, ten of them being invalidated by the same five/four conservative majority.

What coherent definition or vision of federalism has the Supreme Court provided in its effort to justify these state-protective rulings? To my mind, it hasn’t provided one at all. To be sure, there's great discussion in the scholarly literature about any number of justifications for federalism, but little sustained discussion of them in any of the recent Supreme Court cases.

There are dribs and drabs of dicta about trying to avoid federal tyranny, allowing the states to operate as laboratories for economic and social experiments--different things like that. The Court also has talked a lot about the importance of the dignity interests of states. In its most important 11th Amendment decision last term, when the Supreme Court held that states may claim sovereign immunity from adjudicatory processes in federal administrative agencies, as well as in judicial processes, the Court said, quote, "The preeminent purpose of state sovereign immunity is to accord states the dignity that is consistent with their status of sovereign entities."

So, while we get mentions of different federalism interests in the cases, none of them are well developed. But, today, I'd rather develop a slightly different theme—and one that, I think, better explains what is wrong with much of the Federalism Five's resurgence.

My claim, and I'm not alone in this (I think Walter, at least agrees with me--it was easier to say that before he walked in the room--we'll see if I'm right) is that much of the recent federalism doctrine is actually driven by separation of powers concerns. And it actually is subject to strong criticism on separation of powers grounds.

More specifically, I suggest that the Court is largely motivated by a disdain for the process of congressional decision-making when it comes to the scope of congressional power. In other words, while the conservative majority is certainly sensitive to state-protective impulses, what really unites them and animates their decisions is a shared disrespect for congressional judgment. And, unfortunately, in my view, the Court is reacting in a way that places inappropriate shackles on Congress's future ability to engage in a productive dialogue about constitutional norms with the Court.

Let me briefly explain the theme, illustrate it with a recent decision, and suggest how it might play out in a couple of future cases. To put the claim in a nutshell, I think the Supreme Court's attitude towards Congress can be summed up in a quip by Mark Twain: “Suppose you're an idiot. And suppose you were a member of Congress. But I repeat myself.” By that, I don't just mean that the Court views Congress as engaging in a series of dramas where it enacts feel-good legislation that serves no real purpose other than to garner votes from constituents, although I think that is part of it. What I think is going on is more a judicial disrespect for the process of congressional decision-making, both with respect to congressional fact-finding and to deliberations on the meaning of the Constitution.

The prevailing view, I think, of the Federalist Five is that Congress does not critically self-assess the constitutionality of the measures it enacts and does not self-censor those measures that are troubling. And, secondly, Congress fails to do the necessary fact-finding homework to justify its enactments.

Justice Scalia suggested in a recent speech that, perhaps for these reasons, congressional statutes no longer deserve the so-called presumption of constitutionality traditionally accorded to them, simply because Congress is no longer acting responsibly. Now, I'm not troubled by this assessment. I think it's accurate at times, although I do think it's important to note that this kind of responsibility comes and goes with different generations of congressional leaders and different national problems. But what troubles me is that the Court is responding by building into doctrine its distrust of Congress in ways that fail to appreciate Congress's institutional function and capabilities.

We can see this most clearly in the spate of recent cases dealing with Congress's authority to enact measures under Section 5 of the 14th Amendment. Under Section 5, Congress can prohibit state action that it is not itself unconstitutional, so long as it does so with an appropriate prophylactic rule, meaning one that is congruent and proportional to the unconstitutional behavior of the state. This test, according to the Court, requires the Congress to demonstrate a history and pattern of unconstitutional state behavior before Congress can regulate that state. Let me illustrate this using one of the most recent cases, Alabama v. Garrett from 2001.1

Garrett involved Title I of the Americans with Disabilities Act of 1990, which prohibits employers, including states, from discriminating against employees on the basis of their disabilities. The question in the case is whether Title I qualifies as a Section 5 measure enforcing the 14th Amendment, in which case Congress could override the state's erstwhile sovereign immunity and allow private victims of discrimination to sue the states for monetary damages.

In rejecting the claim that Title I was a valid Section 5 enforcement measure, the Court critiqued and dismissed the evidence that Congress had amassed of unconstitutional state discrimination. They found it inadequate to satisfy the new congruence and proportionality test. As detailed in Justice Breyer's dissent, Congress had actually held 13 separate congressional hearings and had set up a special task force that held hearings in every single state, attended by more than 30,000 people. But the Supreme Court found reason to undermine the credibility of all of this evidence in two different ways.

1 Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).

First, the Supreme Court imposed on Congress a set of essentially judicial standards for determining what constitutes a pattern of unconstitutional state behavior. The Supreme Court had already held that judicial challenges to disability discrimination ought to be assessed under the rational basis test--the lowest level of scrutiny the Court ever applies.

In Garrett, the Supreme Court held that the same standard ought to apply even for congressional fact-finding purposes. No constitutional violation exists unless the state action lacks any rational basis. The Supreme Court says, "The burden is on Congress to negative any reasonably conceivable state of facts that could provide a rational basis for the classification"--the same burden it would impose on any private plaintiff seeking the same resolution in a court.

The Supreme Court also demanded that Congress find individual instances of wrongdoing, because generalized findings were insufficient. I'll give you just two examples: In oral argument, when Michael Gottesman defended the statute, and reported some of the specific congressional findings about state discrimination, Justice Kennedy responded with, "On the facts of this case, could the plaintiffs have gone to a court of competent jurisdiction and establish an equal protection violation there?" He made clear he thought those were synonymous inquiries.

When Gottesman mentioned a specific piece of testimony supporting a claim of discrimination in a specific instance, the Court asked, "Was there testimony on the other side?" This makes it quite clear that, according to the Supreme Court, in order for Congress to satisfy its new Section 5 test, it can find facts only in the way that a court can do, i.e., holding mini-trials complete with a court-imposed burden of proof and adversarial arguments with testimony on both sides.

Now many of you in this room who work within the Beltway see the congressional fact-finding process close enough to recognize that there are lots of problems with it. I don't want to suggest that Congress does a great job in all the cases when it is trying to find the facts. But I think, surely, those of you who are familiar with congressional fact-finding can see that it's quite troubling to assume that the Court can impose a judicial-like process on congressional fact-finding because the two processes are asking very different questions.

A court makes an individualized finding to establish legal blame in a specific case. The problem is, in terms of comparing it to Congress, Congress actually tries to legislate in gross. It talks about general societal problems, not so much to assess blame, but to figure out what to do about solving a problem in the future. Congress doesn't have the time nor is it set up with the procedures to delve into the complexities of each and every specific alleged instance of state discrimination across the land.

Absent such an individual-case-focused inquiry, it doesn't even make sense to talk about a particular burden of proof. Indeed, asking Congress to adjudicate, essentially, blame on the part of the states would be disrespectful to the states themselves. It would also get in the way of Congress's efforts to look forward to solving future problems, rather than having to operate in a negative finger-pointing direction.

What the Congress did do, in developing a factual background for the ADA, is the best one could pretty much expect from a legislative body. It looked at lots of studies and generalized accountings of acts of discrimination. It looked at some specific instances. It considered some general psychological and sociological evidence supporting the finding that persons with disabilities are frequently stereotyped. And Congress came away with a generalized determination that lots of states, as well as in private employment decisions involving persons with disabilities, are infused with or motivated by stereotypes or prejudice.

My bottom line here is the Court's refusal to let Congress be a Congress in the fact-finding process essentially disrespects the institutional context and function of that coordinate branch of government.

I also think the Supreme Court disrespects Congress's possible contributions to the elaboration of constitutional norms in another way. The Supreme Court is fairly forthright now about its desire to rein in Congress so as to ensure that the Court, rather than Congress, exercises ultimate control over the meaning of the Constitution. The problem is that this undermines the likelihood of an ongoing dialogue, which could benefit the Court as well as the country.

As a theoretical matter, of course, the Court could learn from Congress about different perspectives and widespread public support for different understandings of constitutional norms. One historical example is developed best, I think, by Bob Post from Boalt Hall and by Reva Siegel at Yale. They focus on a Court/Congress dialogue in the context of the norms of sex discrimination in the 1970s. They point out that when the Court first started addressing the question of how it should approach cases alleging sex discrimination, Congress had already started dealing with the problem. It had already enacted the 1964 Civil Rights Act prohibiting sex as among the many bases of prohibited discriminations and, in 1972, had extended that to public, as well as private employers.

This was ahead of the Supreme Court's curve and when the Court finally did start looking in the early to mid-1970s at what level of scrutiny it should apply, it took its guidance from Congress. In one of the cases, the justices wrote, “Congress, itself, has concluded that classifications based upon sex are inherently invidious, and this conclusion of a co-equal branch of Government is not without significance to the question presently under consideration.”2

If the Supreme Court in the early 1970s was applying the same standard in Section 5 cases then as it is now, there's a chance the Supreme Court would have been unwilling to listen to and might have even invalidated the provisions dealing with sex discrimination in the 1972 extension of the Civil Rights Act. So that's just one example of a circumstance where a Court/Congress dialogue over time about the meaning of constitutional norms could be very productive for the Court as well as the country.

Thus far, the Supreme Court has only considered the congressional enforcement question in the context of rights to which the Supreme Court itself would apply only rational-basis review. I'm putting aside the Morrison case, because that was decided on different grounds. This will change next year. The Supreme Court has granted cert in a case called Nevada Department of Human Resources v. Hibbs,3 a case coming out of the 9th Circuit dealing with the Family and Medical Leave Act of 1993. The question there is whether or not the Act counts as legitimate Section 5 legislation so that wronged employees can directly sue the state for monetary damages. The Family and Medical Leave Act entitles public and private employees to various types of leave. At issue in Hibbs is a provision for employees of both sexes to obtain 12 weeks of unpaid leave to care for an ill family member.

The argument in support of the statute is that current state leave policies are largely sex-discriminatory. Most states provide greater leave to women than to men for this purpose. Congress made that finding and suggested that it's bad for people of both sexes. It's bad for men because they're deprived of the opportunity themselves to stay at home and take care of a family member who's ill. It's bad for women because it stereotypes women as being primary caretakers, thus making it more likely that they are the ones who have to leave work for these purposes. It is more difficult for them to convince employers to hire them.

One could argue that there's a fairly weak factual record supporting instances of state discrimination. Much of the evidence in the record deals with private, rather than state employers. And much of the evidence in the record deals with other forms of leave rather than the form of leave to take care of an ill family member.

But the 9th Circuit panel engaged in what I think is very clever, perhaps, a bit too clever reasoning, in upholding the statute. Its reasoning exhibits the same flaw that I've criticized the Supreme Court for employing. As I explained earlier, the 9th Circuit, following the Supreme Court, says we should apply the same standard of review in determining whether or not there is a pattern of constitutional state behavior as would a court. And, unlike the other cases that have come to the Supreme Court, the Supreme Court would apply intermediate scrutiny to this sex discrimination. And under intermediate scrutiny, if a plaintiff came to court and identified a sex-discriminatory practice, the burden would shift to the state to come forward with evidence that it is not engaging in unconstitutional discrimination. So, reasoned the 9th Circuit, the burden shifts to the court, in this case, to disprove the claim that Congress had a legitimate basis for deciding that there is a widespread pattern and practice of state unconstitutional discrimination here.

As an alternative, the 9th Circuit said, at the very least, when courts read the legislative record that Congress created, they should read it liberally. They should read it with “more latitude in drawing inferences from the legislative history," because they’re dealing with discrimination concerning a quasi-suspect, rather than a non-suspect class.4

Trying to hoist the Supreme Court on its own petard is a very cute argument. But I don't think it works, for the same reason I suggested above: I don't think we ought to think about congressional fact-finding as if it's a replication of judicial fact-finding. I do think the Court is on the right track, in general, in suggesting that when courts look at Section 5 measures designed to deal with discrimination in areas where the Court has already decided there is reason for concern, we ought to be especially careful and apply heightened scrutiny. Then Congress ought to get more deference than it has been getting from the Supreme Court up until now.

In the Supreme Court next year, I think the Hibbs case is a bit too close to call. On one hand, Justice O'Connor might be willing to give Congress some more room to play when the issue is combating sex discrimination rather than age or disability discrimination. On the other hand, Judge Stephen Reinhardt was on the panel for the 9th Circuit and that seems to be the kiss-of-death automatically these days. (He did not write, but was on the panel, in the Pledge of Allegiance case). That’s one more reason why that will not likely stand the test of time.

But I'm also worried, in general, as I was once worried about the Boerne case, that the Court is taking a case to decide the question about how to deal with Section 5 in a heightened scrutiny context with a statute that probably does not have the best factual record supporting it. That's troubling because each time the Court has moved into one of its new areas of federalism resurgence it started with a case that’s weak from the point of view of Congress. Once it's established the guidelines, it's hard to stop from pushing further and further.

Why am I concerned about it? I'm concerned about it because I think the real elephant in the courtroom is not The Family Medical Leave Act. Instead, it's Title 7 dealing with the disparate impact test, i.e., the federal prohibition on state employment practices that have a disparate impact on women or minorities. Much of the reasoning in the Court's Section 5 cases would suggest that the Griggs disparate impact test is not likely to be found a congruent and proportional response to intentional state discrimination. One could defend the disparate impact test by saying it's a useful doctrinal tool to capture all of the instances of intentional discrimination that might fall through the cracks if we simply ask that question directly. But nonetheless, there's no doubt that it is a very blunt and over-inclusive instrument.

Whether the disparate impact test flies or falls as a Section 5 measure and, hence, whether it can be a basis for a suit against a state for money, will largely turn on whether or not the Court decides to be more deferential to Congress with quasi or suspect classes rather than non-suspect classes. But if the Court applies the same stringent test for congressional fact-finding as it did in Garrett and the other recent Section 5 cases, then I think that the disparate impact test will likely go down. That is unless, as with the voting rights cases, the Court decides at the last minute it needs to soften or bend the application of its erstwhile strict doctrinal test to avoid stirring up serious political opposition to its federalism agenda.

Let me conclude by noting that, up until now, the Supreme Court has been pretty good at picking off statutes that might be relatively unimportant to strong political constituencies, with perhaps the exception of RIFRA in Boerne and the ADA in Garrett. So far, it has not considered many critical pieces of federal legislation. And the rubber's going to hit the road when the Court has to deal with something much more substantial, whether it's Title 7 or the Voting Rights Act cases.

Overall, my concern is that, independent of the federalism motivations that are currently driving the Court, it needs to be quite clear about its disdain for Congress's fact-finding procedures. It shouldn’t continue to place roadblocks on Congress's ability in the future to engage in a helpful dialogue about constitutional norms with the Court and with the country. Thank you.

MR. GREVE: Thank you, Evan. In your absence, we've conspired against you, Walter, and decided to make you go second. If that's okay, it's your turn.

MR. WALTER DELLINGER: Good afternoon, it's wonderful to see people turn out for a discussion of federalism on a warm summer day. One theme that one could talk about in this setting is federalism versus American enterprise. I want to begin by noting one of the most perceptive reflections on the battle between federalism and American enterprise. It’s from Charles Fried's much under-read book, Order and Law, which recounts his time as Solicitor General. Charles was summoned from Harvard to come and argue the Reagan revolution before the Supreme Court as President Reagan's first Solicitor General, an assignment he undertook eagerly. In his book he said that his family had been refugees from Czechoslovakia who came in search of free markets where free men and free women, unshackled by the remnants of feudal economy and Breznievean market regulations, could seek their economic freedom and progress. He was inspired by Ronald Reagan's vision of free and uninterrupted markets. So he was eager to put aside his scholarly duties and come to Washington to help do his part in advancing that mission.

Relatively early in Charles's time as Solicitor General, he saw a perfect case in which to advance his notion of the Reagan vision, in which the United States could enter as amicus. It was a case involving a typical set of state regulations designed to serve parochial, local interests that were going to hamstring the national economy. He saw it as a wonderful opportunity for the Solicitor

General to intervene and to explain why these state regulations should be considered preempted by an area of national economic primacy. Indeed, he drafted such a submission on behalf of the United States.

When he sent his brief around to the other officials of the department, a bomb went off with the group he called the “states' rights police” in the Office of Legal Counsel. Charles Cooper, who strenuously objected to the brief because it was opposed to the interests of the states, then headed that office.

A wonderful argument then ensues about which of two different visions is the real vision of the Reagan revolution. Is it states' rights or is it free markets? And Fried was quick to see there were really two strands of Reagan conservatism. He was perceptive in seeing the extent to which those two strands would come to clash and result in a Balkanized economy. He understood early on that increased state regulations and a hampered national authority would inhibit the framer's vision of one great, true, national common market.

Eventually, Attorney General Edwin Meese, consulting with the President, came down on the states' rights side in that particular skirmish. Then Charles, somewhat chastened, went back to other items on his agenda. But I think he foresaw what I see, increasingly, to be the case. The point was put most wonderfully by the general counsel of General Motors. He commented that when he hears the states' rights advocates speak of the glories of the states as laboratories of experimentation, it occurs to him that his company is the laboratory mouse. As Michael has noted, I think we see throughout the economy the effects of a combination of excessive litigation and excessive decentralization of that litigation into state courts.

On the litigation front, it has created something of a false federalism. I think we'll see it played out very shortly in both Congress and in the United States Supreme Court as these issues are joined. What I mean by false federalism is this: True federalism is a system under which those in each state make fundamental policy decisions about how the law ought to shape enterprise in that state. False federalism is a system in which one state or two or three makes legal decisions that adversely affect the entire country and enterprises everywhere that have no voice in those states at all. That's not true federalism.

So when you have mass tort litigation centered in West Virginia, a few counties in Mississippi, some counties in Texas, you wind up having national economic policy made by elected or un-elected judges. This has an enormous impact on consumers who see prices rise and on workers who see an extraordinary number of jobs lost through bankruptcies from asbestos litigation alone. And these groups have no voice.

You may feel that you have more of a voice in electing representatives from your own state than you do from the federal government. But at least you have some voice in the federal government. You have none in a state other than your own.

When one state makes decisions that drive major companies into bankruptcy, it is not a true instance of federalism.

Where will this play out on the national scene? It will play out in two places. In Congress, one remedy that is being considered is class-action legislation. It would allow true class actions of true national impact to be brought in federal court or be removed to federal court if there's any diversity between the plaintiffs and the defendants and the amount in controversy is quite large. To allow the major national class actions to be removed from a state court in Mississippi or West Virginia and tried in federal court would carry out the founding vision of the federal courts as a source of disinterested adjudication.

It will also play out in a remarkable series of cases that Michael has brought to our attention. He’s been writing about how the Court is considering tort law on its agenda next fall to an unusual degree. The Ayres case is a good example.5 I should note that I have filed an amicus brief in Ayres for a number of organizations, including the National Association of Manufacturers and the American Tort Reform Association.

The Ayres case raises two important questions about people who are not, at present, physically impaired when they sue companies who never made asbestos. Lawyers are making lots of money and many companies are going bankrupt. To try to get a handle on this, the Court is going to hear, in the context of the Federal Railway Labor Act, two important questions. One is whether persons who have no physical impairment may nonetheless sue because they fear that they will have an injury later. This swells the dockets enormously, since they're tens of millions of us, perhaps even 260 million, who have been exposed to asbestos. Two, the Court will deal with joint and several liability. This has become increasingly important as a few remaining companies who had a very tangential relationship but may have handled a product at some point are now all that is left standing and represent the deep pocket. The joint and several liability is consistent with that.

The Court will also continue to consider issues of excessiveness in punitive damages in a case involving State Farm from Utah.6 I'm also involved in litigation in West Virginia where 6,000 cases are about to go in September into a mass trial in asbestos. I can't begin to explain to you how 6,000 cases are tried simultaneously in the time we have available, except to say that the trial plan in West Virginia does not inhabit the same universe as the due process clause of the United States.

But those are all issues that are out and about. I think groups like the American Enterprise Institute and the Washington Legal Foundation have already been at the forefront of this; for them, and for the Federalist Society and others, the conflict between federalism and free enterprise will be a subject of lively and worthy debate.

On the other larger issue of where the Supreme Court is on federalism, I noted when I spoke to the states’ solicitors general at Dan Schweitzer's and to the 50 state attorneys general, that the question for them is, does the Court really love you, or do they just hate Congress? And there is actually some evidence for the latter. There is certainly some, and let me make no mistake about this, there is some genuine sense of federalism at work in the Court. You can see it as early as the 1975 opinion by then junior Associate Justice William H. Rehnquist, dissenting all alone in Fry v. United States.7 The Court, by a vote of eight-to-one, upheld the authority of the federal pay board to approve or disapprove pay increases across the economy, including those of the state legislature for state employees in Ohio. Justice Rehnquist’s sole dissent becomes, in a sense, the plan of action that was carried out over the next 25 years. It's really quite extraordinary to see the seeds of later federalism jurisprudence in that opinion.

I think the most genuine federalism issues arose in Lopez,8 which is the case that deals with guns in school zones. In that case, there is a lot to be said for the resolution reached by the majority. Congress had made no convincing showing—there was no connection of guns in school zones and real impact on education or the economy. The argument was too great a stretch. It's a close call but, I think, a legitimate one because the original framers of the Constitution thought that there were going to be areas left to state autonomy, while at the same time they thought that Congress had the authority to regulate those aspects of the economy that concern more states than one and they didn't know that those were going to completely overlap. With modern technology and communications the Court has to make a choice. They made a reasonable choice. I'm surprised that more of the four dissenters in the Lopez cases haven't thought to give stare decisis weight to what is a reasonable, though not necessarily mandated, accommodation. And one, which Michael Greve points out, leaves much room for Congress to legislate and to achieve their objectives.

I think less well of the argument that the silver tounge of Steve Holbrook, who is here in the audience, who persuaded the Court to take. , the state sovereignty notion of the Brady Act where I think Steve's absolutely terrific argument, I was on the other side--the four side, he was on the five side. Someone coming from my perspective is most skeptical of the Court's limited reading of the Civil War Amendments to the Constitution. Congress was the organization of government empowered by the 14th Amendment to protect the national rights of every citizen. It was a treaty of peace after a war that saw one out of 50 Americans die. The South was readmitted but on the understanding that they ratify an amendment that specifically gives the national Congress the authority to protect the rights of citizens everywhere.

Let me close on the question of whether federalism is the central theme of this Court. I think that judicial supremacy will perhaps be the defining theme of the Rehnquist Court at the end of the day. That the Court decides for itself major constitutional issues may be its legacy. Whether this will have a liberal, conservative, or moderate political consequence in the long run remains to be seen. That this Court is somewhat politically moderate taken as a whole means that judicial supremacy has not been exercised in very dramatic ways. But that could change if the Court moves in one direction or another. The seeds of judicial supremacy are there in the Court's doctrine that very much sets the positions of the President to one side.

Ironically, the two most "activist” judges by one measure are the most ideologically moderate. They just do not tend to defer to either the state governments or to Congress. And that's Justices Kennedy and O'Connor, who tend to vote with the Justices Rehnquist and Scalia to invalidate acts of Congress on federalism grounds and others. They also tend to vote with Justices Stevens, Souter, and Ginsburg to invalidate state laws. This makes the combined effect of this Court’s shifting majorities one which very seldom defers to any other institution of the government.

This last thought: if you ask the question, “how deferential is the federal government,” or, “how deferential should the federal government be to the fundamental policy choices made by the states?” You get an answer from this particular Court that is very bimodal. This Court's answer is that the federal government should be very deferential to the states when the agency of the federal government is Congress. In those opinions, they speak eloquently of the dignity of the states and how Congress should defer to their policy choices.

If the reviewing institution is the Court itself, without Congress involved, they show very little deference to the states. This Court is quick to set aside state judgments on either the 1st Amendment, the liberty clauses, or the 14th Amendment. They're quick to set aside California's welfare residency requirements; they're quick to set aside certain aspects of the death penalty, restrictive abortion laws, and laws dealing with sovereignty, like Colorado's decision about how to organize paid solicitors for the referendum process for deciding issues. The tone of those opinions is quite different. In cases where Congress is involved, the Court is deferential to states' rights and federalism. In cases that Congress is not involved, I don't see the same deference. I think we'll see the effect of judicial supremacy quite dramatically in decades to come.

MR. GREVE: Thank you, Walter Dellinger. [Applause.] John Harrison.

MR. JOHN HARRISON: Thank you Michael. My question is: are the prerequisites in place for the Supreme Court and constitutional law to play a significant role in the American federal structure?

My answer is, no, I don't think so. But I also don't think that matters a great deal to American federalism in the federal structure. I'm going to tell a story. I hope this is excusable, but in a second you'll see why I couldn't resist it. It has to do with the Supreme Court federalism and their relationship.

It starts back in 1977 when I was a first-year law student taking constitutional law in New Haven. One day, toward the end of the course when we'd been talking about a recent Burger Court equal protection case, the professor came in and said he had been thinking the night before and he just couldn’t stand it anymore. He said he was thinking that he’d spent his whole career working with this kind of stuff--and look at what the Court was doing! This was all just drivel and he asked himself what had he done with his life? And then said, “It's too late for me, but it's not to late for you--you could all go be dermatologists or something.”

Foolishly, I did not take his advice, which is probably better for the skin care condition of America. Instead, I stayed in law school and eventually found myself teaching constitutional law. And after a few years of doing that, I had a similar response: I can't go on. I can't talk about what Justice Kennedy thinks he means when he says the framers split the atom of sovereignty. I just can't bear it anymore. So, I stopped teaching constitutional law. I just couldn't handle it. But, they said, I had to teach something. So, I started teaching other things and I realized that I was incessantly teaching federalism.

I asked if I could teach corporations. They said I could teach corporations. Corporations is all about federalism and that’s something I'd have understood better had I had superior attendance practices in Ralph Winter's corporation's course. But, of course, the role of Delaware and the question of whether corporate law in America is a race to the top or a race to the bottom is an absolutely fundamental question.

I taught remedies. Remedies is all about common law. American common law is overwhelmingly state law. I taught property. I constantly found myself talking about majority rule and minority rule. I saying that I had no idea how it comes out under the Napoleonic Code in Louisiana and don't ask me about California. And I taught civil procedure. I discovered that the diversity jurisdiction is, of course, all and overwhelmingly about federalism.

So I had abandoned constitutional law without abandoning federalism. I found that outside of constitutional law, federalism was everywhere. That sort of led me to wonder what constitutional law really has to do with federalism and whether or not that relationship is a particularly strong or important one. And as you'll see in a couple of minutes, I think it isn’t. That's going to be the main body of what I have to say.

I want to tick off a couple more ground-level issues that I think are worth thinking about given the cases that the Court's going to see in the next couple of years. Both of them have to do with the enforcement clauses of the reconstructions amendments.

One of them has to do with the interaction between those clauses and state sovereign immunity. The Court has largely invented the doctrine of state sovereign immunity and has a largely invented exception for the enforcement clauses of the reconstruction amendments (see Fitzpatrick v. Bitzer).9 It says, for example, that Congress, under Section 5 of the 14th Amendment, can create money damages for remedies for states when they violate Section 1. One of the reasons the Court has had to flesh out Section 5 in the last couple of years is because they face a series of cases, including Florida Prepaid and Garrett, about Congress's power under Section 5.

It may be that the argument I'm about to sketch is somewhere in a footnote and I've missed it. I'm waiting for somebody to say that any statutory right created by Congress is a privilege or immunity of citizenship of the United States. Hence, even under Slaughterhouse cases, the states are bound to respect those privileges or immunities. Anything Congress does can be enforced by Section 5. I'm just waiting for that.

The other question that we are all waiting for the Court to answer is, what about the constitutionality of the results test of the Voting Rights Act of 1965? Very few statutes Congress has adopted have had the deep structural implications of the Voting Rights Act of 1965. It has made a big difference. Saying that the results test, which is basically what drives the creation of majority and minority districts in a lot of states, is beyond Congress's power to adopt under Section 2 of the 15th Amendment would be a move with significant practical implications.

As I say, most of the time the Supreme Court doesn't matter all that much. When they matter, it's because they change the structural operations of government and create constituencies, or change the relative powers of constituencies. That's why Buckley v. Valeo is a genuinely important case. It is about political power. The reapportionment cases in the 1960s were genuinely important because they were about political power and they empowered constituencies that were not going to give the power back and haven't. Similarly, the implication of the Voting Rights Act for reapportionment is that it's entirely possible to control of the House of Representatives turns on this.

It's not the case that Section 2 of the 15th Amendment is the only practical question there. Congress probably could enact something like that with respect to congressional apportionment under its general power over congressional apportionment. But if they were told that what's in the Voting Rights Act was unconstitutional, would they then be able to adopt something anew? It’s a difficult and tricky question.

Those are my ‘what's the Supreme Court going to do’ ground level kind of comments. At a higher level of abstraction, I want to move the camera back and get to my main question which is, what are the prospects before the Supreme Court and is constitutional law really making a difference in the way the system of federalism operates?

I don't think that those prospects are particularly strong. I don't think that the pre-requisites are in place for the Supreme Court and constitutional law to play a large role there.

This question comes up in basically three contexts: one of constitutional interpretation and two of statutory construction. The one of constitutional interpretation are the straight-out issues. For example, here is a congressional statute that pretty clearly is an exercise of a doubtful power. Is it permissible or not? Lopez v. United States is an example of that.

The two statutory construction contexts in which this sort of thing comes up are one where the statute is, itself, unclear. The question is, should we read the statute as pushing the outside of the envelope of, as it were, congressional power? A classic example is the case surrounding the federal arson statute.10 A federal arson statute, in theory, can cover basically anything. Any time somebody lights a match it could have an effect on interstate commerce and the Court said it's a statutory construction matter. We don't really think that Congress wanted to leave that to the match regulators at OSHA. They didn't want people prosecuted under regular criminal arson statute.

The other statutory construction context is pre-emption. Pre-emption in the situation I'm particularly concerned about is in situations where congressional power is clear and the question is whether Congress exercised it or not. Did Congress pre-empt state law or not? That's the standard pre-emption context. That's another one in which doctrine could, in principle, make a difference, and sometimes has. But as I say, I don't think is really likely to, under present circumstances. Well, why not?

The prerequisites are not in place. What are the prerequisites? The general prerequisite for any doctrinal system of constitutional law to make a difference--

The other prerequisite is an ability to translate the consensus into a workable doctrine that courts can administer. That's the sign of a good doctrine, when upon reading a legal study guide, you know the answer to the bulk of the cases. That means the doctrine works. If there are a lot of hard cases, the doctrine has a problem.

Those are the general prerequisites for a constitutional doctrine that makes a difference. For federalism specifically, I think there are two substantive prerequisites that have to be in place for constitutional law in the courts to matter.

One is a pretty strong notion of the relative roles of the state and federal governments. What is supposed to be federal and what is supposed to be state?

The other element, and this one is not as duplicative of the first one as it might seem, is a notion of what is presumptively the ground of the states. In general, what do you expect the states to be doing rather than Congress to be doing?

What are the prospects for our having a doctrine like that? I don't think they're particularly good. By way of showing why I don’t think they’re very good, let’s contrast it with a period in American constitutional history when there was a lot more settled consensus on the relative state role and the relative federal role. Both the dormant Commerce Clause doctrine and the affirmative Commerce Clause doctrine bore that out.

That period is from about 1880 to about 1930. You can quibble about the exact time, but that's the period of what you might call the "High Dormant Commerce Clause." Commerce Clause principles were really fundamental to the operation of the American constitutional system. And as a result, there were affirmative Commerce Clause doctrines and there really was a fair bit of stability as to the state role and the federal role. The courts played an important part, but they were policing well-accepted boundaries.

The key to that period was a vision about the substantive relationship between the states and the federal government. That vision was a dormant Commerce Clause-oriented vision. Walter was talking a few minutes ago about the idea of the great national economy. That's the idea that drove this.

The first substantive notion was that, by and large, governmental power was in the states. Federal power is supposed to be limited and interstitial.

But principle number two was that there was supposed to be this big, great American common market. That imposed not overwhelming, but important limitations on the states. Limitations on the states created regulatory gaps, places where the states couldn't regulate. Since somebody has to regulate, it was thought that Congress could regulate in those areas. That's the logic of the system that prevailed from about 1880 to 1930. It's got a substantive notion underlying it. It interlocks the figure and the ground of what is federal and what is state. And people pretty much thought that that was how American federalism was supposed to work.

There were always line-drawing questions. One of the fun line-drawing cases from that period is the Federal Baseball case.11 How do you classify baseball as being interstate or intrastate? The games are played in one state, but a lot of the business of baseball is interstate. Yankees fans hate Red Sox fans and a version of this makes it in the briefs in Federal Baseball. There’s not language about Yankees fans hating Red Sox fans, but language about encouragement on interstate rivalry is in the briefs in Federal Baseball. What kind of business is baseball? That's a tricky question. And the Court says, it's fundamentally local and it's a local dog with an interstate tail.

There were problems, but by and large it worked because of the underlying structural consensus about how the overall system was supposed to operate.

Anytime you have a system of American federalism, you have to layout what to do about the Necessary and Proper power. You have to determine the rules for Congress's power to pursue some goal related to interstate commerce when it means invading what would otherwise be the state or local governments’ area.

One of the fascinating things about the structure that prevailed from around 1880 until 193412, was the attempt to limit the Necessary and Proper Clause with relatively formalistic and categorical notions of the situations under which Congress could regulate a local activity. This is in contrast to having essentially quantitative justifications so that Congress can regulate local activity if the local activity's effect on interstate matters enough. That's the way we would tend to think about it today.

That's not the way the Court tended to think about it for about 50 years. Rather, they tried to construct categories. They were thinking like lawyers, thinking in terms of doctrine, in terms of what you could put into a Nutshell. The great categorical concept asked, “Was the business affected with a public interest?” Businesses affected with a public interest were broadly subject to a lot of regulations that other businesses weren't. It turns out that in a number of cases, businesses affected with a public interest (quintessentially railroads, but a few others) could be regulated even with respect to their local activities because they were integrated with some kind of interstate commerce effect.

That was a categorical system of policing the Necessary and Proper Clause lines. It worked, more or less. Then, in Nebbia v. New York, a majority of the Court abandoned the concept of business affected with a public interest. (By the way, I'm stealing most of this from my colleague Barry Cushman - let me say that right now.) The key prop of Commerce Clause doctrine was knocked out and for the following ten years that court tried to figure out how to handle these cases.

Justices Hughes and Roberts aimed not to overthrow American federalism, but to replace these categorical concepts with what can be summed up as, “We know it when we see it. Too much is enough, but not enough is not enough.” That’s an excellent formulation, right? There has to be a significant impact on interstate commerce in order for Congress to regulate something that is local.

That, and not our dual system of government being at an end, is what’s going on in National Labor Relations Board v. Jones & Laughlin.13 Chief Justice Hughes had in mind a notion of non-categorical, but nevertheless meaningful, restrictions on the Necessary and Proper Clause.

Is that sort of thing doctrinally administrable? We know what happened over the next five or ten years: the Court gave up. Justice Jackson, looking at Wickard v. Filburn14 wrung his hands about enforcing limits on Congress just on the basis of the effect not being enough. Having abandoned formal categories, will simply quantitative-effects measures be enough? Justice Jackson concluded that would end up being arbitrary and basically gave up.

So, there have been times when the prerequisites were in place for a meaningful federalism doctrine. What about now? Are they in place? I don't think so. I do think that there is one relatively widely shared view about the proper role of the states and national government, which is: Congress should be able to do absolutely everything. There has to be at least one thing Congress can't do.

This is sort of the "Oh, come on now" principle. The story is (and I think I may have heard this from Walter) that the moment of truth in the argument of United States v. Lopez15 was when the solicitor general was asked from the Bench to give an example of a statute Congress couldn't adopt, under his reading of the Commerce power. And there was an embarrassed silence and he changed the subject.

He's supposed to have an answer to that question. There has to be something that Congress can’t do. That's why I say it’s the, "Oh, come on now" principle. The principle, despite being widely shared, is not very powerful. All it says is, “if you can list half a dozen things that Congress can't do, we'll believe that our dual system of government, at least as far as the Supreme Court is concerned, is intact.” So the view as to which there is a consensus is just not very powerful.

What about other possible ways of putting meat on the bones, of having a substantive vision of the state role, the federal role? I don't think there's one that would obtain sufficient support.

For example, what about the notion that the purpose of limiting congressional power is to put the states in a forced form of inter-jurisdictional competition? They have limited regulatory authority, but they have to keep their borders open and have the great nationwide common market. They have to be subjected to regulatory competition from other states. Other states may have regulatory regimes that are more favorable to businesses and will attract more of them. It's the WTO notion, and the whole structure may put a damper on state regulation of business and perhaps on state redistribution too.

It's entirely possible that that's a good idea. It's entirely possible that the constitutional system can operate that way. I think, however, there is no consensus that it is constitutionally mandatory for it to operate that way. That’s partly because there is no consensus as to which is a race to the top and which is a race to the bottom.

This is the same question that’s plaguing the debates over United States participation in the WTO. Which kind of jurisdictional competition is good, and which kind of jurisdictional competition is bad? Without a consensus on that, there can't be a consensus on when inter-jurisdictional competition should be mandatory. There also can't be a constitutionally enforceable doctrine, the animating substantive vision of which is inter-jurisdictional competition.

What about the national common market that animated American federalism for such a long time? Once again, I think it's a policy matter. It's got a lot of attraction; a lot of people think it's a good idea. But there is enough dissent about it and dissent about when it should be operative to say that there is not the kind of political consensus in place that the Court can enforce and police outliers against it. I don't see a candidate for the substantive notion other than the "Oh, come on now" principle, which is going to operate one time in a thousand.

What about the possibility of a meaningful statutory construction/preemption doctrine organized around the idea that there are certain situations in which there is genuinely presumption against preemption? You need to have a notion of the presumptive role of the states for that. One of the things I discovered, as I said, when I bailed out on constitutional law is there are all sorts of areas where state law is still dominant. Most of private law is like that. Property, contract, tort are all heavily state law.

Can we say that, at least as a matter of statutory construction, there is a consensus that those areas (property, contract, tort) are areas where you expect state law to govern and where it will be an unusual situation for Congress to step in? I don't think that consensus exists. If you look at the current debate, not only over state tort law, but also over which circumstances should trigger federal regulatory statutes to trump state tort law, and at the tort cases proper, you will find people from all over the political spectrum coming out in different places. You will not find systematic answers. In the absence of systematic answers, there’s no vision of a presumptive role of the states that will have bite and is enforceable with a preemption doctrine of presumptions about statutory construction.

I don't expect the courts to be making a big difference in the next five years or so with respect to what goes on in the American federal system. I do, however, expect to keep teaching state law for reasons that don't have much to do with the kind of constitutional law that the Supreme Court enforces, but has a great deal to do with the deep structure of the American constitutional system.

The states are there. They provide complete systems of government and they administer systems of private law. Whether that be the common law in 49 states or the code in one state, they are in principle complete and are capable of answering any legal question that arises before them. In 1954, Henry Hart and Herbert Wechsler talked about federalism and explained why the states continue to be central loci of governance in America. All of those deep structural reasons that make the iron frame of the American constitutional system are still in place. They drive state government. And the Supreme Court, fortunately, doesn't really have to do much to keep them in place.

[Applause.]

MR. GREVE: Michael Rappaport.

MR. RAPPAPORT: Thank you, Michael.

It's commonly said these days that the Supreme Court's divided into two groups. We've got the five federalists, who are in favor of enforcing limits on national power and protecting state sovereignty. And we've got the four nationalists, who consistently oppose limits on national power.

There’s a common view about these groups. In law review articles, in the media, and I think on this panel as well, the federalists are portrayed as pursuing an agenda of conservative judicial activism. You hear that they're striking down federal law and showing disrespect for Congress. By contrast, the nationalists are seen as being restrained and principled.

Despite the frequency with which one hears this view these days, I think it's wrong. Not only do I think it's wrong, I think it gets it backwards.

In my view, I think the nationalists are pursuing an agenda that's radical, reactionary, and even, in a way, activist. The nationalists are not showing restraint. They're pursuing an outdated vision that lacks constitutional basis.

By contrast, the federalists are following an approach that, by and large, successfully reconciles original meaning to precedent. Moreover, far from ignoring Congress, I think they're paying quite a bit of attention to the political world. There’re trying, as others have said, not to step on too many toes and are taking great pains not to create a significant political reaction. In fact, if there’s a criticism, I think it’s that they're paying too much attention to the political world, not too little.

I’ll start with the nationalists. Nationalists have consistently opposed the decisions that people have been talking about over the last decade. The decisions fall into two different groups. There are the enumerated powers decisions, where the Court has said that Congress has exceeded its powers under the Commerce Clause or under Section 5 of the Fourteenth Amendment. And similarly we have the state immunities decisions. I would place in this area the prohibition on Congress commandeering the states, and the limitation on Congress's ability to abrogate state sovereign immunity except under the Fourteenth Amendment.

Let me explain why I think that the nationalists' consistent opposition to these cases is based on a radical, reactionary, and even activist position.

First, the nationalist position is radical because it essentially allows for no limits on national power. Under the nationalist view, Congress can pass a law and, simply by stating that the activity they're regulating affects interstate commerce, they have the authority to do so. That’s not to mention their authority under Section 5 of the Fourteenth Amendment. With that authority, they can regulate the states in virtually any way that they see fit.

Consider one extreme example of this type of federal power. Suppose Congress wants to enact an unpopular, controversial law that's going to regulate a local matter. Under the nationalist view, not only do they have the authority to do it, they can require the states to enforce that law. And to ensure that there's vigorous enforcement, they've got private causes of action against the states for damages, attorney fees, class actions, and punitive damages. And in fact, if they don't want to take too much responsibility for this, they can give it to a federal administrative agency to do the job.

You might say that this is unlikely. But I think that misses the point. The point is that this vast array of power allows Congress to do anything that it pleases. The fact that it doesn't need those tools now doesn't mean it's not going to use those tools in the future.

In Garcia v. San Antonio, a case endorsed by the nationalists, they said that they stood ready to enforce constitutional restraints against extreme incursions like requiring a state to move its capital.16 The problem with these vague promises, is that they don't do very much. Even if the Court was ready to impose a limit of that sort, there would still be an enormous amount of room for the national government to regulate. But I'm not even sure that the Court would enforce that. It's one thing for the Court to say that they stand ready to prohibit some hypothetical statute that might be enacted. It's another thing to actually refuse to enforce it after a political process gains the momentum and makes the arguments to pass something.

After all, the Court might now be in a position to hold constitutional a law that prohibits political speech in the month before an election. That once would have seemed shocking. I still think it's shocking.

The nationalists' principal justification for this view is that the legislative process operates to protect states. But I think this is an unlikely view because we’re post-Seventeenth Amendment and we’re in a modern era where the federal government has really stood triumphant. Moreover, federalism is not only about protecting the states; it's about protecting individuals from the national government. But even if it were just about protecting the states, I think this process view gets it wrong. One of the most powerful institutions in modern America is the press. Does anyone think that it would be okay to not enforce the Freedom of Press Clause because the press can take care of itself? So first point is that this view is radical.

I also think it's reactionary. It's reactionary in the sense that it's rooted in an outdated vision of government. This New Deal nationalist approach, as developed somewhat by the Warren Court, can claim little continuing legitimacy.

That the nationalists are following a New Deal approach to federalism appears obvious. The nationalist opinions are permeated with arguments and understandings that first gained ascendancy during the New Deal. In the Commerce Clause cases, for example, the nationalists accept the argument that the original meaning of the Constitution essentially allowed for an unlimited Commerce Clause.

To my mind, this argument is clearly mistaken. Text structure and history strongly suggest that the Commerce Clause grant was significantly limited.

The nationalists' opinions also rely on the New Deal precedents. And of course one might say that the nationalists are simply relying on precedents, not enforcing a New Deal vision. But I think this argument is problematic. Lopez and Morrison were carefully crafted to not overturn any cases. But even if you think they do overturn cases and change the law, nationalists are not opposed to overturning cases, not even long-standing cases like Hans v. Louisiana.17 The nationalists may be following precedent in this area, but the point is that they're choosing to follow the New Deal precedents.

One reason why this nationalist adherence to the New Deal vision is reactionary is that the New Deal vision was never constitutionally justified. The New Deal famously refused to enact its views of government through constitutional amendments. Therefore they've legitimately departed from what precedent and reliance interests would allow.

Bruce Ackerman's famous argument about the New Deal adopting an implicit constitutional amendment is important here. I think Ackerman is right in that the New Deal requires an implicit constitutional amendment in order to be justified. What dooms the New Deal vision is the fact that virtually no one besides Ackerman thinks that such implicit constitutional amendments are possible.

I think the nationalists' adherence to the New Deal vision is reactionary in another sense. Nationalism is increasingly viewed as a problem for which federal structures provide the solution. Now we’re seeing smaller nations joining together in the world to form larger confederations, like the European Union. And we’re also seeing large countries devolving power. Even China is, in a way, devolving power. The nationalist vision is increasingly an idea whose time has gone or is going.

Finally, I also think the nationalist agenda represents a kind of judicial activism. The paradigmatic type of judicial activism involves the court going beyond the constitution and striking down actions brought by others simply on that basis. It would be something like the Warren Court.

Contrast that with a court that consistently refused to enforce the constitution. It would be a do-nothing court. I don't think you could rightly describe that court as activist. It would just be a lawless court, if you will.

Despite first appearances, I think the nationalists are closer to the Warren Court than they are to this do-nothing court. Nationalists are willing to go beyond the constitutional text in all kinds of individual rights areas. They're simply unwilling to enforce the text as to federalism. Going beyond the text to strike down provisions you don't like and refusing to enforce the text to approve decisions you do like, is pretty close to Warren Court activism. It’s maybe just one step away.

Now let me briefly consider the federalists. As I said, I think they've been pretty measured in their attempt to move toward original meaning as limited by a theory of precedent. In fact, far from flouting Congress, they've been paying close attention to the political world in order to avoid actions that would create a political backlash and place the federalism enterprise in jeopardy.

The best evidence for this claim is the general pattern of federalism cases. In Commerce Clause and in Section 5 cases, the federalists have been careful to have a narrow area beyond Congress's authority.

The federalists haven't moved in other areas. They haven't done anything to narrow Congress's authority under the Spending Clause, which might have enormous implications for a large number of federal statutes, even though Spending Clause powers might be used to circumvent the other restrictions. Moreover, when the federalists confront issues that could affect powerful political forces, they will often address them through statutory interpretation. So when the Court reviewed an environmental case involving isolated wetlands, they didn't hold it was unconstitutional; they said as a matter of statutory interpretation isolated wetlands couldn't be regulated. The federalists also have restrained Spending Clause statutes. Once again, they act through statutory interpretation but not through constitutional authority.

State sovereign immunity cases represent the one area that the federalists have pursued vigorously. I think this can be explained as well. The sovereign immunity cases create a lot less political opposition precisely because they can be largely gotten around. They allow lawsuits against state officers, they allow the federal government to bring lawsuits, and they allow lawsuits under Section 5 of the Fourteenth Amendment.

This understanding of the federalists' actions may even explain a puzzle about the sovereign immunity cases. It's often been pointed out that there's no specific textual basis for sovereign immunity in these decisions. To my mind, the lack of textual warrant is a serious problem and threatens to render this line of cases illegitimate.

So the question is, “Why doesn't the Court seek to provide a firmer textual basis?” There are at least two possible textual bases that they could pursue. First, that sovereign immunity derives from the term "state" in the Constitution, which at the time the Constitution was enacted meant an independent nation that had full sovereignty.

Secondly, that it derives from the term "proper" in the Necessary and Proper Clause. And that proper laws, those that are necessary and proper, are ones that can't violate certain legal principles that were deeply rooted at the time, in 1789.

Maybe the strongest argument for sovereign immunity is to combine the term "state," to then say the term shows that laws abrogating state sovereign immunity are not proper.

One possible explanation for the federalists' failure to move in this area, other than that they may be unconvinced by these arguments, is that they think the most persuasive public justification for the sovereign immunity cases is the idea that they're simply enforcing understandings that go back to the time of the Constitution. Then, if you had a new innovative textual basis, that might suggest you were doing something new instead of just enforcing old ideas.

If that's true, then the federalists' refusal to provide a textual basis might be seen as kind of a preference for political acceptability over legal or intellectual respectability. And if that's the choice that the federalists have made, I think they've seriously erred in this area.

In general, I think these speculations suggest that the federalists are pursuing an approach that is expanding constitutional federalism toward the original meaning without the limit creating a significant political backlash.

Assuming this speculation is correct, the final question is, “Would that be a legitimate enterprise?” For some, the claim that the federalists are considering political effects will hardly be news and hardly be criticism. The view is that most justices have done this. What’s more, in a world where political branches can dramatically affect the Court's decisions, the preservation of constitutional principles, paradoxically, requires consideration of the political effects.

On the other hand, more high-minded people might beg to differ. They might argue that the role of the Court is to look to the original meaning as limited by precedent. They might argue that if the Court starts worrying about political expediency, that’s wrong in and of itself, and it's going to lead to taking liberties with other aspects of the law.

And thus we have an age-old conflict between principle and pragmatism. It’s a conflict between, if you will, a Scalian view of the world and a Rehnquistian view of the world. I've always considered myself a Scalian, but as I've gotten a couple more gray hairs, I've developed a bit more sympathy for the Rehnquistian approach.

However you resolve this issue, it seems clear that the federalists are not ignoring Congress. They are taking the political world quite seriously. To my mind, they're not activists. In the main, they're prudently and pragmatically seeking to restore the original meaning of the Constitution.

Thank you.

MR. GREVE: Thank you very much.

I have a lot of questions about what's been said. As those of you who know me might expect, I also have an opinion as to absolutely everything that's been said. But I'll keep those opinions to myself. We'll open the proceedings to the audience.

AUDIENCE MEMBER (BRAD CLARK): Hi, yes. My name is Brad Clark. I'm a professor at George Washington University Law School.

I have one question for the panel. It relates to Evan's comments and also to Walter's comments. But I'd like to hear everyone's answer if they're interested. Even, you suggested that the Court has become increasingly activist in terms of the number of federalism decisions it's been handing down over the course of history. I would approach that problem from a slightly different perspective and ask, “What do we make of Congress's enactment of legislation that has provoked these decisions?” And what of those statutes coming so recently and so frequently, with an increasingly expansive view of federal power?

It's certainly the case that there were no commandeering statutes for most of our 200-plus-year history, and now we have them. There was never a statute like Lopez, which attempted to criminalize mere possession as a federal crime. Or there have been very few, and certainly they're of very recent vintage.

Walter made a very valid point in that Congress hasn't used its power in the areas where the Founders probably intended them to use it most, the economic area. I think Lopez leaves ample room for them to do so, in tort reform or other areas. So why have we seen Congress becoming so active in areas that should be left to the states, and sort of repudiating or refusing to act in areas that should be governed by the federal legislation?

MR. CAMINKER: I think that's a great question. I agree with the premise, which is that Congress is passing statutes by the numbers, but also delving into areas that up until 20, maybe 30 years ago, we hadn't seen and would have been thought to be completely implausible. So, to some degree, it's not surprising we see judicial review invalidating federal statues more frequently.

It's not just in the federalism context. As Michael has written, the Court's been extremely active in the First Amendment context as well, with more and more inventive regulations of political campaign speech, etc.

Consistent with that premise, I come out where Walter does on Lopez. I think that Lopez was probably rightly decided, although I think I would have tried to write an opinion that was a little bit more clear as to what doctrinal tests lower courts ought to use in implementing it. Maybe it's impossible to come up with a better bright line when you're dealing with a principle that states that you can't go too far. I don't disagree with the application of Lopez in general.

As Michael said, at one point or another, all of us on the panel were in the Office of Legal Counsel, but under very different administrations. We've all had the experience of gritting our teeth when we see congressional proposals come across our desk. For those of us who were in Democratic administrations, we were gritting our teeth asking, “Why is damn-fool Congress trying to do this, which is going to require us to defend it in court and surely get slapped down, generating more bad precedent?” From the conservatives, it would have been, “Why is our Congress doing this when this goes against right and true principles of federalism?”

I don't disagree at all with the premise. But the Court still has to be careful in how it responds. I think it's perfectly appropriate for the Court to shoot a warning sign across the bow of Congress, to make them start thinking carefully about their own decision-making. Lopez does that. What I suggest is problematic is setting into stone doctrinal requirements that will continue to have a hampering effect on congressional decision-making even at future times and in future contexts where Congress is thinking far more responsibly about its own constitutional duties.

The example of that would be Section 5 enforcement of sex or race discrimination. With those statues, surely Congress would inevitably be discussing amongst themselves the elaboration of constitutional norms, even though its fact-finding processes might not look much different than the ones that the Court already has had trouble with.

MR. DELLINGER: Brad, that's such a good question, and it reflects the Justice Scalia sort of message he sent to me indirectly. One year I had spoken about Justice Scalia voting in 11 out of 11 cases that dealt with the constitutionality of acts of Congress, to invalidate the act of Congress. That was really sort of an eyebrow-raising statistic. After the term was over, his response was, if Congress passes 11 straight unconstitutional laws, where's the problem? Why does that statistic suggest the problem lies with Scalia? I think that is a very well taken point. Let me respond to it precisely and then make a larger comment.

I think we have seen the bipartisan trivialization of national politics in the post-Cold War era. With the fall of the Wall, the end of the idea that the president's black box is with him at all times and that thermonuclear war is always possible, I think our national politics became the politics of local news coverage. Members of Congress wanted to vote for things that were seen on the local news. I think there were certain advisors that saw what was on the local news as what people cared about, not macro national economic policy. Congress loves to vote for statutes. They don't seem to mind, in many instances, if they're struck down.

If you write an unconstitutional Internet pornography statute and it gets struck down, you get to vote for another one next term. What's not to like? I think lots of cases and the Court's ease in Clinton v. Jones all reflect that.18 It’s the idea that we're in a post-thermonuclear world, so you don't have to worry about executive power or national power.

I think that in the larger context, there's a lot to what Michael Rappaport was saying. I think the Court is missing the middle on the federalism cases and that would be a useful thing to have. There is a case to be made that the "nationalists" are too cavalier about placing restraints. I think there is much to like about Lopez. Not everything done in the name of Section 5 is constitutional. I don't think the Religious Freedom Restoration Act was constitutional. I think that for complicated reasons that there was a clear holding of the Court that had to be overcome.

At the same time, the Court's majority seems to give no weight to the different functions that legislatures have, so they have to play second fiddle to whatever the Court itself has done, and that as a long-term doctrine, is a matter of concern.

Lastly, I think we may be moving beyond ideology. I'm not sure which way what we normally think of as liberal and conservative is going to cut in the future on issues of federalism and national power. And I think that might lead all of us to inform our thinking in that perspective.

MR. GREVE: The gentleman up here.

AUDIENCE MEMBER (FRED SMITH): Fred Smith, Competitive Enterprise Institute.

It was mentioned that there were different ways to rationalize federalism. One of rationalization was the economic area. What about in this area when states are acting to externalize cost on others? What about when that's the predominant effect of a state action? Can you see the Court using that as a way of defining a meaningful concept of federalism?

MR. DELLINGER: It's interesting that where they've inched toward that notion is in Gore v. BMW, a large case on punitive damages.19 But the point is that the amount of punitive damages assessed against BMW for a botched paint job clearly reflected the national number of such automobiles that had been repainted before being sold. That was lawful in many of the other states. The Court saw that as an Alabama jury making law contrary to the other states.

So the Court has, at least in one instance, made that literally part of this doctrine. But I think it's going to be an increasing matter of concern for the Court to look at economic effects where one state is tending to make a rule for the country.

MR. GREVE: John Harrison.

MR. HARRISON: I want to say something about that. I'm going to make that an example of the sort of thing I was talking about. Pardon a little bit of imperialism.

On one hand, I think that is, of course, a powerful concept. It is fundamental to the policy of setting up any kind of federal system to deal with that kind of defection behavior by the component parts. I also think that that is a non-doctrinizable concept. I don't think that the courts are going to get anywhere saying we're going to go out looking for externalization, identify it, and distinguish it from legitimate policy choices by the local unit.

But I do think that it is ground on which Congress can act. And there are a lot of things Congress can do. And to pick up what Brad Clark was talking about a moment ago, Congress has a lot of resources in dealing with the structure of the federal system that it only rarely taps. The diversity jurisdiction of the federal courts is the one they keep forgetting about. It is, by itself, a powerful tool. They have lots of other powerful tools that I don't think this Court would keep them from using to deal with effects on the national economy of locally self-interested decisions.

That's got everything to do with federalism; I think relatively little to do with judicial enforcement of federalism.

MR. GREVE: I'll break my promise; I'll say something about this. We have four essentially New Deal-ish justices, by Mike Rappaport's and others’ classification. You have the following problem: the justices who are most prepared to take another look at the New Deal and to go to something like what he suggested are also the very same justices who believe that the dormant Commerce Clause under which this ordinarily came is completely made up. That would be Justice Scalia and Justice Thomas.

Then, the question is, “Can you have a doctrine of extra-territoriality that looks anything like an operational doctrine without deriving it from something that you've just declared to be nonexistent?”

Next question.

AUDIENCE MEMBER (BOB LEVY): Bob Levy at the Cato Institute.

My question is primarily for Mike Rappaport. You suggested that, on balance, these sovereign immunity cases promote federalism. It seems to me that's true if federalism was designed to constrict rather than to enlarge individual rights. And that in turn might be true if federalism was interpreted as preservation of states' rights or preservation of states' dignity. But if you think of federalism as a matter of dual sovereignty, that is, with the federal government checking the power of the states and vice versa, then clearly the purpose was to enlarge individual rights.

What we have in the Eleventh Amendment is a prohibition against private suits against a state in federal court based on diversity of citizenship. But then the Court said in Hans that diversity doesn't matter. In Seminole it says it's okay to have immunity even if it's federal question of jurisdiction.20 In Alden it says it doesn't matter if it's a federal court, it can be a state court.21 And now in the latest term, FMC, it doesn't even matter if this litigation takes place in the context of an administrative agency.22

So my question is this: Haven't the conservatives on the Court effectively behaved in an outcome-determinative fashion? Haven't they simply constitutionalized common law and in pursuit of ends that they find congenial? In trying to limit federal power, haven’t they ended up adopting illegitimate means, that is, sovereign immunity? And in doing so, haven’t they disregarded that by expanding sovereign immunity far beyond what the text of the Eleventh Amendment requires, they've effectively cut off the right of redress for individuals who have had violation of their rights on the part of states and state agencies?

MR. RAPPAPORT : I share a lot of your concerns with respect to the normative aspects, apart from the constitutional aspects about sovereign immunities. I certainly don't think sovereign immunity, as a first principle, is a terribly attractive idea. The government, if it does wrong, should be forced to take account of that. As a second-best idea and as a way of keeping the states afloat, there's a bit more to be said as a normative matter for sovereign immunity, but in the end I share your view about it, normatively.

My point about sovereign immunity here was a constitutional matter. It wasn’t about federalism principles in the constitution but more to ask the question, is it in the Constitution? I’m asking, is it in the original meaning? I think there are some plausible textually based arguments for sovereign immunity.

The third point is, I don't think it comes out of the 11th Amendment. I quite agree with you there. That's kind of silly, I think. The Court has increasingly recognized that, but it still hasn't found a textual base. To me, you have to find some textual base in the Constitution, if you think it's there. And I'm interested in exploring that.

MR. GREVE: I think John Harrison wanted to comment.

MR. HARRISON: Yes, I want to briefly say something normatively in favor of sovereign immunity. Especially in its origins in America, sovereign immunity had to do mainly with contract claims and it meant that states could get out of their contracts to some extent. It also provided a substantial limitation on the ability of people incumbent in power at any one time to make binding commitments for the taxpayers' money to be paid to some interest group with whom they were friendly.

Sovereign immunity actually limits the powers of the people's agents to dispose of the people's money. Thought of from that standpoint there's something to be said for it, as a protector of individual rights against self-dealing by possibly defecting government agents.

AUDIENCE MEMBER: The Court supported and FMC rejected that and said it was not a matter of protecting state sovereignty but, rather, a matter of respecting state dignity.

MR. HARRISON: They're working on it.

AUDIENCE MEMBER: Well, I just want to add one quick word. I also won't now take the time to talk about the normative underpinnings of sovereign immunity, but I do want to link back to something that John said. He said that the Court's rulings are most important where they affect political power. Sovereign immunity decisions, like them or not, are of that order of magnitude as well because they go to the question of whether or not individual citizens have a realistic chance at holding state governments accountable for wrongdoing. Of all the Supreme Court doctrines in the federalism area, this is one that really does influence power structures that are quite important to us.

MR. GREVE: Yes, Todd Gaziano?

AUDIENCE MEMBER (TODD GAZIANO): Todd Gaziano from The Heritage Foundation. My question follows the previous discussion. Those who know me know I have an opinion on everything. I'll spare everyone what that is except for the previous question. To that end, I think I have a better textual basis for sovereign immunity.

I certainly think the Supreme Court has not done a good enough job of articulating the basis. I agree with Bob that, over all, the framers were interested in dual sovereignty in order to protect individual rights. But they knew that wouldn't solve everything. I think the better textual basis is the delegated and enumerated powers, which are explained very well in the Federalist. This was partially explained in Kennedy's opinion in Alden. The 11th Amendment proved that the Supreme Court had an improper understanding of the Congress's enumerated powers.

During the debate over the framing, the anti-federalists were very afraid for their individual liberty at the hands of the national government. Madison argued in Federalist 45 that this commerce and these other powers we've enumerated are, admittedly, new but no one--and he must have known this was wrong, but he was making the argument--seriously questions that they will be ever abused. When the anti-federalists said that's wasn’t enough for them and they needed a bill of rights, Madison kept screaming up and down, “No, no, no, enumerated powers are enough!” And, of course, the 9th and 10th amendments were added as a compromise and they worked in a very limited way.

My question is, did they formulate sovereign immunity as a branch of enumerated powers federalism? Isn't that a better textual basis than trying to read too much into the words “state” or “proper,” or at least isn't that an alternative ground?

MR. RAPPAPORT: I don’t fully follow. The word “proper” is part of the enumerated powers. So, if what you're saying is that if you have a narrow understanding of the enumerated powers federalism, sovereign immunity's not going to come up very often. But maybe I'm missing your questions. Although it's interesting that the South Carolina case was as interstate commerce related as you're going to get.

MR. : You may be wrong in individual cases, John--

MR. RAPPAPORT: No, I know. But it's certainly true that if you had a very narrow understanding, that is, if you had what I would say was the original meaning of the commerce clause, you wouldn't have very many sovereign immunity cases coming up. You wouldn't have very many challenges to sovereign immunity because there simply wouldn't be a lot of regulations of the state because Congress couldn't do it. Section 5 is another story.

MR. GREVE: I think we better go to the next question. Next question?

AUDIENCE MEMBER (SIMON LAZARUS): This is directed at any of you who would like to answer. I think that the results in all the federalism cases have tended to be relatively insignificant. But sometimes and, particularly in Lopez, in term limits, and in some of the other cases, the theory that is being invoked and often endorsed by five or four members of the Court is, really, quite radical. And I would like to ask two questions: Do you all feel that this is just overblown rhetoric? Meaning, should we not bother taking this terribly seriously and does it have no real implications for what a Bush Supreme Court and judiciary is likely to do? And, specifically, do you think that the Court will continue to pretend that the principles they've indicated in these cases really require some sort of circumscription of the spending clause?

MR. DELLINGER: I'll take the second, first of Si's good questions. I have thought this Court is prepared to take on congressional spending power. It is not the answer that Congress can always turn to the spending power. I think that the Court will, at some point, hold it as a germaneness requirement. A very important and, I think, correctly decided case this term, Gonzaga University v. Doe, is actually very important. What the Court is doing, without using constitutional doctrine, is saying that Congress never authorized private suits seeking punitive damages where Congress put restrictions on federal spending.

And I think the present Court has seen how the Courts in the '70s wandered unthinkingly into assuming that when Congress passes a federal statute giving universities funds, it meant that those funds were conditioned on schools not discriminating against women or respecting student privacy. Congress never specifically authorized individuals to bring suits for damages. That judicially inferred doctrine has really spawned much of the federal judicial superintendence of institutions that receive federal funds. And I think Gonzaga v. Doe from this last term is underrated in its importance. The Court says, in holding that one may not bring a suit for money damages against the university that released student records, that Congress said they wanted schools to have a system in place for handling student records when Congress is funding it.

Congress never said they wanted individuals to be able to sue as a private right for money damages. In another case they limited punitive damages. I think the major cut-back is going to be telling Congress that, if they want to authorize the litigation that brings federal courts into the matter under the spending power, they’re going to have to say so much more explicitly.

I do think there are some doctrinal assertions about the singularity of the Court as the interpreter of the Constitution that are the seeds for some later radical judicial superintendence. I have no idea whether that would come from the left or the right, so I don't have a short run idea of what a Court appointed by President Bush’s picks might do. I do think there’re some seeds of judicial exclusivity in interpreting the Constitution that would be a source of power for a Court of the future.

MR. GREVE: Yes, please.

AUDIENCE MEMBER: First, what Walter just said, is overwhelmingly true, especially about how they got started on their Section 5 run. That was very much about judicial exclusivity and constitutional interpretation.

I wanted to offer something about the questions of what a Bush Court might look like and what would a more aggressive doctrine of federalism look like. I think that scenario is pretty unlikely, though. And here's an amateur political science reason why.

For the Court to make a difference, it needs to be either on the side of a national majority against a local outlier, or on the side of a 45-percent national minority. It needs to be on the side of a minority, but one large enough to block action.

But Congress already has so many informal super-majority requirements in place that it's really hard for anything to happen without at least 60 percent support. The number of things that Congress could knock down that would then have a blocking minority able to keep them from coming back somehow.

MR. GREVE: Go ahead, Mike.

MR. RAPPAPORT: Even if one thinks that these cases haven't really done anything, it's worthwhile to pause for a second and think about what they meant symbolically.

When I was in law school, it just wasn’t considered that there were limits for the national government outside of the individual rights areas. It's taken a while, but at least part of what these cases have done is to get people used to that idea. And where we go from here, who knows? That's an important thing, especially to the extent that you think that people's consciousness and ideas matter about these things.

MR. DELLINGER: Michael, the excellent questions and the level of the discussion leads me to believe we need a conference called "Beyond Ideology and the Constitution." Because, I think we're now beginning to shake up ideology in very interesting ways in this discussion.

First, look at what’s happened with the 1st Amendment. The free-speech clause was long thought of as the left's personal constitutional amendment. Now, the threats to free speech come from the left and the champions of the 1st Amendment are those we think of as the right. You have the Chief Justice and Justices Scalia, Thomas, Kennedy and O'Connor, voting, correctly, to invalidate a law that regulates what candidates for political office can say about why they were running. And four Justices, amazingly, dissent from that position. We can no longer distinguish between them. There’s a doctrine against junk science as part of a protection of corporate rights and judges are then using it in criminal defense cases. I think we're seeing more indivisibility. You can't say we're for certain kinds of rights - only for corporations or only for criminal defendants. We're really mixing up the ideology.

Finally, in federalism, I think it's important to note that we've been taking the very narrow view. We've thought of the national power being, quote, "liberal," and states' rights being conservative. But for the first 150 years, as John Harrison pointed out, it was very much the other way. The framers saw, in 1787, what was true for the next 150 years, up until 1937. They saw that national power would be a government further removed from the people and from populism. It would be conservative in that it would be property-rights protective, market-protective, and enterprise endorsing. It was really the populists who existed at the states' level. And it took the New Deal to capture the national government for a time.

But we're no longer clear where the more partisan ideology lies with respect to some of these great constitutional issues. We may approach them somewhat more open-mindedly when we step back and think of it from those viewpoints.

MR. GREVE: Walter Dellinger, has given me the cue. We're going to have another conference one of these days, but for today, we're adjourned. I thank you all for coming and please join me in thanking the panel for a very interesting discussion. [Applause.]